Berardi

George H. Berardi filed a petition for writ of mandate and/or prohibition challenging the trial court’s order overruling his demurrer to a complaint filed by the San Diego County District Attorney’s Office charging him with murder (Pen. Code, § 187, subd. (a)) and conspiracy to commit murder (§§ 182, subd. (a)(1), 187, subd. (a)). Berardi argues the complaint is barred by section 1387’s “two dismissal” rule because there have been two prior dismissals or terminations of actions against him involving the same charges. He alternatively argues that to the extent section 1387 does not require dismissal of the complaint, he is denied his constitutional right to equal protection of the law.

FACTUAL AND PROCEDURAL BACKGROUND

About 6:00 p.m. on July 8, 2005, police found Marcus Keglar lying on the ground between two apartment buildings. (Berardi, supra, 149 Cal.App.4th at p. 481.) He had been shot in the head and died after being taken to the hospital. (Ibid.) In August, Daniel May admitted he shot Keglar and told police Berardi was not involved. (Ibid.)

On July 9, Anna Tong, Berardi’s friend, told police Berardi did not sell marijuana and heard him tell Keglar to “ ‘leave him…